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CAUSE NO. 04-15-00222-CV

IN THE ESTATE OF § IN THE FOURTH COURT 

CARLOS AGUILAR, § OF APPEALS 

DECEASED § SAN ANTONIO, TEXAS 

________________________________________________________________________ 

MOTION FOR REHEARING 

________________________________________________________________________ 

TO THE HONORABLE FOURTH COURT OF APPEALS: 

 NOW COMES Clarissa Aguilar, as the sole surviving parent and Next Friend of 

Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar, 

Minor Children (hereinafter “Movants”), and file the following Motion for Rehearing, and 

would show the following: 

I.

On June 4, 2015, this Honorable Court denied Appellee’s Motion for Sanctions. 

Appellees respectfully move the Court to reconsider this order because Appellees have 

now obtained a reporter’s record of sworn testimony from a court hearing on May 26, 2015, 

before the Honorable Jesus Garza. This record is attached to this motion and is filed in this 

Court.

This testimony shows beyond any reasonable doubt sanctions should issue. This 

testimony was not considered by this Honorable Court when it denied Appellee’s Motion 

for Sanctions because not yet available to be filed in this court. 

ACCEPTED

04-15-00222-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

6/17/2015 2:53:28 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/17/15 2:53:28 PM KEITH E. HOTTLE Clerk
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II.

On May 26, 2015, the Honorable Jesus Garza heard Movants’ Motion for Contempt 

against Vanessa Arce and Her Counsel, Balmer. David G. Balmer failed or refused to 

appear for the hearing. Ryan Anderson did appear and gave sworn testimony concerning 

the frivolous appeal filed by David G. Balmer.

Balmer filed the notice of appeal. He did this the day the discovery compelled by 

this order was due to be answered. Furthermore, Balmer refused to answer the discovery. 

Mr. Anderson testified Balmer filed the notice of appeal without first consulting Mr. 

Anderson, the appellate attorney for Vanessa Arce. See RR at 14. Mr. Anderson admitted 

the trial court order Balmer purported to appeal concerned discovery issues. Id. at 16. Mr. 

Anderson agreed with this Honorable Court that no statute declares such an order 

appealable under the Probate Code, and that the order does not appear that the order 

disposes of all parties or issues in a particular phase of the proceedings. Id. Mr. Anderson 

also agreed with this Honorable Court that no other statutory authority permitting a party 

to appeal from an interlocutory discovery order could be found. Id. 

Mr. Anderson claimed Balmer’s appeal was the wrong procedural mechanism to 

challenge the discovery order. Id. at 17. Anderson also testified all responsive documents 

had been produced, leading one to question why appellate intervention in a moot discovery 

dispute was warranted.
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III.

The Rules provide:

If the court of appeals determines that an appeal is frivolous, it may--on motion of 

any party or on its own initiative, after notice and a reasonable opportunity for 

response--award each prevailing party just damages. In determining whether to 

award damages, the court must not consider any matter that does not appear in the 

record, briefs, or other papers filed in the court of appeals.

Tex. R. App. P. 45. Evidence shows Balmer’s appeal is frivolous. Less egregious appeals 

have merited sanctions. Mid–Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 

393, 395 (Tex. App.-San Antonio 1999, no pet.); Diana Rivera & Assocs. v. Calvillo, 986 

S.W.2d 795, 799 (Tex. App.—Corpus Christi 1999, pet. denied).

Anderson testified all responsive documents had been produced. This can only mean 

there is no arguable basis for mandamus, appeal, or any conceivable appellate intervention. 

This Honorable Court ordered Balmer to file in this court, on or before May 18, 

2015, a written response showing cause why his appeal should not be dismissed for want 

of jurisdiction. He chose to ignore this Honorable Court’s order and failed to file a 

response.

Objectively, all the evidence, as in 100% of the evidence, shows Balmer lacked any 

lawful basis to invoke this Court’s jurisdiction over this discovery dispute. No reason has 

been offered by Balmer for filing this notice of appeal or invoking this Court’s jurisdiction. 

This notice of appeal defines frivolity. 
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Movants have suffered damages as a result of Appellate Counsel’s frivolous appeal 

in this civil case and therefore request that this Honorable Court exercise its discretion to 

sanction Balmer $5,000 for the attorney’s fees and costs incurred in having to respond to 

the frivolous appeal filed by Balmer.

PRAYER

For these reasons, Clarissa Aguilar, as the sole surviving parent and Next Friend of 

Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar, 

Minor Children, asks the appellate court to assess sanctions against Balmer for $5,000, and 

grant such other relief as the Court in fairness deems appropriate in this situation.

Respectfully submitted,

BY: “/s/ Ronald Rodriguez”

Ronald Rodriguez

State Bar No. 00788306

ron@ronaldrodriguez.com

Willard Clark

State Bar No. 24087307

will@ronaldrodriguez.com

The Law Offices of Ronald Rodriguez

A Professional Corporation

915 Victoria Street

Laredo, Texas 78040 

Tel: (956) 796-1000

Fax: (956) 796-1002

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been served on 

all counsel of record on this June 17, 2015, in accordance with the Texas Rules of Civil 

Procedure.

“/s/ Ronald Rodriguez”
 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/17/15 2:53:28 PM KEITH E. HOTTLE Clerk